Should Hate Speech Be Outlawed?

In The Harm in Hate Speech, Jeremy Waldron discusses a loosely defined category of expression that he addressed in a review of Anthony Lewis’s book Freedom for the Thought That We Hate in The New York Review in 2008, and in the Oliver Wendell Holmes Lectures at Harvard University in 2009. Although his references to Justice Holmes in this book are not exactly flattering—Waldron writes that “at one time or another [Holmes] took both sides on most free speech issues,” and that Holmes’s judgment “that criticizing the military was comparable to shouting ‘Fire!’ in a crowded theater” is “preposterous”—in her introduction of Waldron at the Holmes Lectures, Harvard Law School Dean Martha Minow praised Waldron as “one of the two or three greatest legal philosophers of our time.” That high praise also applies to one of Waldron’s former teachers, Ronald Dworkin, who has criticized Waldron’s writing about hate speech.

While references to learned debates among such scholars suggest that the average reader might have difficulty understanding the arguments in Waldron’s book, such is not the case. The book is eminently readable and peppered with anecdotes and examples. For one, the instance of hateful speech that some readers may interpret as the proximate cause of Waldron’s decision to write the book was this e-mail addressed to him by a reader: “YOU ARE A TOTALITARIAN ASSHOLE.”

I suspect that the author of that e-mail may be a person who believes that our Supreme Court has been too willing to seek guidance in the work of foreign judges and foreign lawmakers. Waldron is certainly not such a person. His book provides arguments supporting hate speech prohibitions, to which other countries traditionally have been more amenable than has our own. Yet Waldron apparently does not expect his work to lead to any major changes in United States law. He writes that his purpose is not to persuade readers “of the wisdom and legitimacy of hate speech laws,” or “to make a case for the constitutional acceptability of these laws in the United States.” In fact, he thinks it is

unlikely that legislation of the kind I set out…will ever pass constitutional muster in America. That’s alright: there are many different kinds of laws, regarded as enlightened in other parts of the world, that do not satisfy this test—gun control laws, for example. The point is not to condemn or reinterpret the US constitutional provisions, but to consider whether American free-speech jurisprudence has really come to terms with the best that can be said for hate speech regulations.

Waldron believes that we have overprotected speech that not only causes significant harm to the dignity of minority groups but also, more importantly, diminishes the public good of inclusiveness that is an essential attribute of our society.

His book sheds light on a number of difficult issues, and occasionally exposes the difference between historical fact and fiction. One of his favorite targets is our society’s frequent citation of Voltaire for the proposition that despite our disagreement with what a speaker has said, we will defend to the death his right to say it. As Waldron reminds us, it is far from clear that Voltaire made that remark and—more significantly—what provoked it. On more than one occasion, Waldron points out that it is usually a liberal bystander, rather than the target of hate speech, who is most willing to defend the First Amendment rights of the offending speaker.

After noting the variation in the scope of hate speech regulations in other countries, the book’s first chapter, “Approaching Hate Speech,” describes only in broad strokes the kind of speech about which Waldron is concerned:

The use of words which are deliberately abusive and/or insulting and/or threatening and/or demeaning directed at members of vulnerable minorities, calculated to stir up hatred against them.

Waldron’s avoidance of a bright-line rule in this area reminds me of the comment made by one of my favorite Justices about attempts to define another category of expression that shares some of the characteristics of hate speech. Obscene speech is offensive to some but by no means all viewers of television and movies and books; it tends to pollute our intellectual environment; and Waldron apparently agrees with Catherine MacKinnon that it fosters gender-based discrimination. Rather than attempting to define obscenity, Potter Stewart famously wrote: “I know it when I see it.” So it is with hate speech. While many liberal democracies have enacted laws prohibiting it, their definitions of the concept vary, and Waldron does not discuss cases interpreting the concept in foreign jurisdictions.

Instead, in endnotes to Chapter 1, Waldron quotes the text of the statutes concerning hate speech adopted in Canada, Denmark, Germany, New Zealand, and the United Kingdom. The differences among the statutes raise questions that the book does not answer. For example, while the Canadian statute prohibits public statements inciting hatred against “any identifiable group,” it is not violated unless the statement is “likely to lead to a breach of the peace.” The law enacted in Denmark, by contrast, does not seem to require a likely breach of the peace and encompasses any statement that derides any “group of persons” because of “their race, colour of skin, national or ethnic background, faith or sexual orientation.” With the exception of the UK statute, which covers “threatening, abusive or insulting words or behavior,” the cited statutes seem to apply only to actual speech without explicitly mentioning expressive conduct, such as burning draft cards, crosses, holy books, or flags.

Thus, instead of stating a general proposition that he either supports or opposes, Waldron begins by providing the reader with the facts of what may well have been an actual incident in New Jersey. A Muslim man, walking with his two children, turns a corner on a public street and is unexpectedly confronted with a sign saying: “Muslims and 9/11! Don’t serve them, don’t speak to them, and don’t let them in.” The father is not sure how to respond to his children’s questions about that message, or other signs expressing hostility to Muslims. Waldron describes those signs

loosely as “hate speech,” putting them in the same category as racist graffiti, burning crosses, and earlier generations of signage that sought to drive Jews out of fashionable areas in Florida with postings like “Jews and Dogs Prohibited.”

That example of anti-Muslim speech is important for two reasons. First, it has nothing to do with violence. The speaker has not threatened anyone, and there is no suggestion that the message will provoke a violent response by any of its targets or violent attacks against Muslims by those who sympathize with the views of the speaker. Thus, most of our Supreme Court opinions concerning the First Amendment protection for speech that may lead to violence are simply inapplicable to Waldron’s thesis that government should regulate speech of this kind. Second, the principal reason why Waldron believes such regulation would be desirable is not just to protect the targets of hate speech from offense. Rather it is to protect the inclusive character of a society that should respect the dignity of all of its members.

Waldron’s example seems to assume that the justification for regulating hate speech applies equally to the anti-Semitic speech and the anti-Muslim speech that he quotes. There are, however, two differences that merit comment. First is the temporal difference. Although anti-Semitic speech still occurs, it has almost disappeared from the public forum in the United States. The fact that social disapproval rather than government intervention brought about the change lends support to the general presumption against official censorship.

Second, while no group of Jews had carried into action a specific threat to public safety at the time that hate speech against them was prevalent in this country, today public concern about the potential behavior of a small subset of Muslims has been prompted by recent events. Toward the end of World War II, the kamikaze suicide bombers were Japan’s most effective weapon against our naval forces, and today it is suicide bombers like those who attacked the World Trade Center on September 11, 2001, who pose the most immediate threat to our national security. While the great majority of American Muslims—including many relatives of persons killed on that date—are just as offended by that attack as any other American, and have the same interest in preventing any future attack, one cannot exclude the possibility that there may be a few people of Muslim faith who pose a special danger.

That possibility does not justify the hate speech identified by Waldron. Nevertheless, such speech may generate responses by both neutral observers and respected leaders of the Muslim community that will both produce a better understanding of that community’s culture and correct misleading statements by extremists. Waldron is right to criticize the “bravado” of liberals who call “attention to their ability to bear the pain of this vicious invective [by proclaiming] ‘I hate what you say but I will defend to the death your right to say it.’” Nevertheless, I think we need more speech on this topic, not less, even if that means permitting some speech that is offensive.

In Chapter 2, Waldron reviews his debate with Anthony Lewis about freedom for the thought that we hate. Lewis argues that we should learn to tolerate hate speech because codes regulating it would create a danger of overenforcement that could seriously threaten the expression of unpopular ideas. Waldron believes Lewis undervalues two points: first, that what is regulated by hate speech laws is not hateful thought but hateful expression (a point that seems unimportant to me, since thought and expression are closely intertwined in this context); and second, as Waldron often repeats, that toleration of ugly speech is easier for liberal bystanders than for the target of the speech.

Waldron and Lewis agree, however, that “Americans are freer to think what we will and say what we think than any other people.” They also agree, up to a point, about the history that led to that freedom. In 1798, when Congress enacted the Alien and Sedition Act, the United States was a young country and federal authority was precarious:

George Washington was denounced as a thief and a traitor; John Jay was burned in effigy; Alexander Hamilton was stoned in the streets of New York…. Republican militias armed and drilled openly, ready to stand against Federalist armies. Over everything, like a specter, hung news of the Jacobin terror in France. It was by no means obvious in those years—though it seems obvious to us now—that the authorities could afford to ignore venomous attacks on the structures and officers of government, or leave the publication of such attacks uncontested in the hope that they would be adequately answered in due course in the free marketplace of ideas.

It was over a century later—in the aftermath of World War I—that federal judges began to see the power of the state as much more of a threat to the individual than vice versa.

The interesting and informative discussion of history in this chapter omits any comment on the importance of a unique aspect of American history: the fact that during the period under discussion the dynamic growth of America was fueled by immigration of several different ethnic groups, each attracted by the freedom of opportunity here but also each engaged in economic and political competition with other groups of immigrants. What might now be classified as “hate speech” included not merely comments by members of the majority but exchanges between rival ethnic groups.

In Chicago, for example, which may at one time have included more citizens of Polish descent than any other city in the world except Warsaw, the members of other ethnic minorities used factually inaccurate speech to denigrate the intelligence of Poles. Jokes about Polish kamikaze pilots having flown over twenty missions are an example. Thus, I think Waldron’s discussion overlooks the role of hate speech in ongoing exchanges among rival ethnic minorities. Given the fact that federal immigration legislation imposed quotas based on national origin, speech arguing that some minority groups should not be welcomed had a political dimension. Moreover, his discussion ignores the importance of the circumstances in which a remark may be made. Shakespeare’s reference to Fortinbras as a “Polack” in Hamlet conveys a far different meaning from the same reference in an Irish neighborhood in Chicago.

Waldron’s third chapter, “Why Call Hate Speech Group Libel?,” best explains his thesis. The chapter includes his most extensive discussion of Beauharnais v. Illinois, a 1952 Supreme Court decision. Waldron begins with a comment on why the term “hate speech” is somewhat misleading as a description of the category of expression that he would regulate: the term “hate” gives more emphasis to the motive of the speaker than to the effect of the speech on its targets and on society, and the term “speech” ordinarily refers to oral statements rather than writings. Defamation disseminated through oral statement is slander, whereas written defamation is libel, which is more serious because it is more permanent. Thus, despite its title, the book is really about the desirability and constitutionality of state regulations of group libel, a topic addressed by Beauharnais.

In Beauharnais, by a 5–4 vote, the Supreme Court upheld the constitutionality of an Illinois statute prohibiting the publication or exhibition of any writing or picture that portrayed

depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which…exposes [the members of the class] to contempt, derision, or obloquy or which is productive of breach of the peace or riots.

The decision affirmed the defendant’s conviction for distributing a pamphlet that exposed black Illinois citizens to contempt, derision, or obloquy. Waldron quotes the pamphlet at some length and correctly notes that it neither threatened violence nor was likely to incite disorder; “the majority observed that it was enough that the leaflet was just hateful and defamatory.” As Justice Frankfurter explained:

Illinois did not have to look beyond her own borders or await the tragic experience of the last three decades to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community.

Earlier in the book, as examples of judicial review of laws prohibiting hate speech, Waldron cites Beauharnais along with two other Supreme Court decisions. One, Virginia v. Black (2003), held that a state could ban cross- burning only if it was carried out with an intent to intimidate; the other, R.A.V. v. City of St. Paul (1992), held that an ordinance prohibiting cross burning was invalid. Waldron also cites as another example a 1978 federal court of appeals decision allowing Nazis to march in Skokie, Illinois. Those cases demonstrate that some state legislatures have decided that hate speech laws make sense, but they do not unequivocally answer the question whether the kind of legislation that Waldron favors would be constitutional. Of the four cases, only Beauharnais upheld the law, and Waldron acknowledges that scholars question that decision’s continuing validity.

Waldron emphasizes that three of the four dissenters in Beauharnais either assumed or agreed that group libel laws do not necessarily violate the First Amendment. Only Justice Black contended that the exception from the First Amendment that allows states to prohibit defamatory speech is limited to false and scurrilous statements about individuals and does not encompass “huge groups.” Waldron argues that Justice Black’s position disregards common law, including a 1732 case involving a blood libel against Jews in London and an 1868 New Hampshire case in which accusations of cowardice were levied against a company of soldiers. Waldron also contends that Justice Black’s position is unwise. He argues that the harm caused by libel is enhanced, not diffused, by an increase in the number of persons defamed. While this argument is logical and the two common law cases lend it support, the scarcity of relevant precedent suggests to me that that there is less need for legislative or judicial lawmaking than Waldron assumes.

Because Waldron focuses on the permissibility of prohibiting group libel, he does not pause to acknowledge that Beauharnais may well have been decided incorrectly for a few reasons that might not affect the validity of other hate speech regulation. In their separate dissents, three of the Justices persuasively argued that the trial judge erred in depriving the defendant of any opportunity to defend his statements as truthful; that his pamphlets may well have been constitutionally protected as petitions for the redress of grievances because they advocated a change in the law; and that the law might prohibit an unacceptable amount of protected speech even if the defendant’s own pamphlets were unprotected by the First Amendment.

Waldron argues, contrary to the view of federal judges and other scholars, that Justice Brennan’s 1964 opinion in New York Times v. Sullivan did not undermine Beauharnais. In Sullivan, the Court held that liability for damages turned on the plaintiff’s proof of actual malice, that is, that the defendant’s statement was made with knowledge of its falsity or reckless disregard as to whether it was false. As Waldron emphasizes, Sullivan applied its standard only to defamation of public figures. Waldron argues that Justice Brennan’s reasoning for special protection for comments about public officials in order to protect robust public debate is inapplicable “when the reputations of nonpublic figures (like ordinary African Americans living in Illinois) are at stake.” He notes that treating a group of citizens as public figures even when no individual in the group has that status “just seems silly.”

But there are two reasons why it is not “silly” to treat groups of private figures similarly to individual public figures. First, as is the case with critical comments about public figures, comments about groups are more likely to concern issues of general public interest than are comments about individuals. The concern about chilling valuable speech on such topics is significant, as it was in Sullivan. And second, groups, like public figures, are better able to make effective responses to unfair charges than the average private citizen. Groups may aggregate their resources for response and take advantage of the greater credence the public may afford to their shared, rather than individual, view.

Despite his explanation of why Sullivan should not apply, Waldron admits in an earlier chapter that “[Anthony] Lewis is probably right that Joseph Beauharnais’s conviction would not be upheld today.” He bases his admission not on Sullivan, but on the Supreme Court’s decision in Brandenburg v. Ohio (1969), which reversed the conviction of an Ohio Ku Klux Klan leader for advocating violence against blacks because the statute of conviction was not confined to speech that was intended and likely to produce imminent lawless action.

Waldron understands Brandenburg to mean that “hate speech, like seditious speech, is protected unless it is calculated to incite or likely to produce imminent lawless action.” Thus, he ultimately concludes the chapter by stating:

Judge Richard Posner is probably right when he said in 2008 that “though Beauharnais…has never been overruled, no one thinks that the First Amendment would today be interpreted to allow group defamation to be prohibited.”

An interesting feature of that dictum by Judge Posner, an unusually well-respected judge on the United States Court of Appeals for the Seventh Circuit, is that some years earlier another exceptionably well-respected judge on the same Circuit, the late Judge Robert Sprecher, expressed a different view. In his partial dissent from that court’s decision upholding the right of the Nazis to parade in Skokie, Illinois, Judge Sprecher argued that the reasoning in Sullivan, which relied on the plaintiff’s status as a public figure, did not undermine the holding in Beauharnais, which involved private figures—that is, Judge Sprecher offered essentially the same argument that Waldron makes in his book.

Whether Judge Posner or Judge Sprecher is the better prophet of the future of the central holding in Beauharnais may not really matter because all that was at stake in Beauharnais was a $200 fine for a misdemeanor conviction. Even if a narrowly drawn statute making it a misdemeanor to engage in the most virulent form of hate speech might be upheld, it by no means follows that a legislature could constitutionally outlaw the entire broad and vaguely defined category of hate speech that Waldron targets.

In any event, beyond Waldron’s acknowledgment of Brandenburg as countervailing authority, the Court’s recent decision in Snyder v. Phelps (2011) provides persuasive evidence that Judge Sprecher would be in dissent today, just as he was in the Skokie case. In Snyder, the Supreme Court held that the First Amendment protected speech that a jury had found intentionally inflicted emotional harm on the family of a deceased marine during his funeral. The speech contained a mixture of hateful comment and comment on public issues. Even though Justice Samuel Alito persuasively argued that the hate speech should not have been given constitutional protection because neither the deceased nor the members of his family were public figures, eight Justices ruled in the speakers’ favor.

Chapter 4, “The Appearance of Hate,” directs our attention to the contrast between “the visual aspect of a society contaminated by posters or publications that deprecate the dignity and basic citizenship of a certain class of people in society” and “what we would hope to see in a society that was open to the lives, opportunities, and expectations of members of every group.” Waldron argues that the latter would qualify as a “well-ordered society” within the concept of the philosopher John Rawls. Waldron also convincingly explains why the removal of hate speech signs would improve the quality of the environment for all of us. Nevertheless, he is uncertain about whether Rawls would share his view that hate speech should be entirely prohibited. Waldron’s argument has an “all or nothing” quality that leads me to wonder about whether he believes that some borderline unfriendly speech should be prohibited. If so, how much?

In Chapter 5, Waldron distinguishes between protecting people from offense and protecting their dignity. The example of contemptuous conduct in open court illustrates his distinction. We do not punish the contempt—at least we do not acknowledge doing so—because the judge may be angered by an insulting remark or gesture, but rather to maintain decorum in the courtroom. Sustaining a judge’s authority assists her in performing her job. So it is with the dignity of the ordinary citizen. The fact that members of an ethnic minority may be justifiably outraged by hate speech is not a sufficient justification for censorship. But as citizens in a civil society, they are entitled to be treated with respect in the performance of their daily activities. Such dignity, Waldron argues, is “precisely what hate speech laws are designed to protect.”

The distinction between protecting from offense and protecting individual dignity seems valid and parries the thrust of well-settled First Amendment law that the offensive character of a message does not provide an acceptable justification for official censorship. But it raises questions about the precise dimensions of the category of expression that Waldron would prohibit and how he would decide cases on the border of that category. For example, he correctly describes the Danish cartoons that portray the Prophet Muhammad as a bomb-throwing terrorist as being offensive to Muslims, but regards them as a “critique of Islam rather than a libel on Muslims.” He admits, however, that “it might be a question of judgment whether this was an attack on Danish Muslims as well as an attack on Muhammad,” and accepts that “where there are fine lines to be drawn the law should generally stay on the liberal side of them.”

In the end, although the book does not persuade me that it would be wise to outlaw the entire category of hate speech that Waldron describes, he elegantly and convincingly advocates that our leaders should not only avoid the use of hate speech themselves, but also condemn its use by others. Waldron writes:

Public order means more than just the absence of fighting: it includes the peaceful order of civil society and the dignitary order of ordinary people interacting with one another in ordinary ways, in the exchanges and the marketplace, on the basis of arm’s-length respect. Above all, it conveys a principle of inclusion and a rejection of the calumnies that tend to isolate and exclude vulnerable religious minorities. “[I]f we may openly speak the truth,” said John Locke, “as becomes one man to another, neither Pagan nor Mahometan, nor Jew, ought to be excluded from the civil rights of the commonwealth because of his religion.”

We should all do our best to preserve President Ford’s conception of America as a place where we can disagree without being disagreeable. An understanding of the arguments in Waldron’s book may help us to do so.